Joanna Weber v. HHS - Influenza, shoulder injury related to vaccine administration (SIRVA) (2018)

Joanna Weber filed a petition on March 21, 2017, seeking compensation under the National Vaccine Injury Compensation Program. She alleged that she suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine in her left shoulder on October 8, 2015.

The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on March 27, 2018, conceding that Ms. Weber suffered a SIRVA and had satisfied all legal prerequisites for compensation.

On March 29, 2018, Chief Special Master Nora Beth Dorsey issued a Ruling on Entitlement, finding Ms. Weber entitled to compensation.

The case then proceeded to determine damages, with the sole disputed issue being pain and suffering. Petitioner was represented by Isaiah Richard Kalinowski of Maglio Christopher & Toale, PA, and respondent was represented by Lara Ann Englund of the U.S.

Department of Justice. Ms.

Weber's medical history included arthroscopic debridement and repair of her right shoulder labrum in April 2013, and she was attending physical therapy for right neck and shoulder pain at the time of her flu vaccination. Nineteen days after receiving the vaccine, on October 27, 2015, she saw orthopedist Dr.

Anthony Wallace complaining of immediate left arm pain, rating it 8 out of 10 and describing it as occurring with overhead lifting, with mild weakness. Despite these symptoms, her examination showed a full range of motion and full strength.

Dr. Wallace performed a subacromial steroid injection, deferring imaging and NSAIDs due to a potential pregnancy.

On January 11, 2016, Ms. Weber returned to Dr.

Wallace, reporting that the injection provided some relief but her pain was 4 to 5 out of 10, worse with overhead activity and lying on the shoulder, though not severe enough to wake her from sleep. Her range of motion and strength remained full.

An ultrasound showed no rotator cuff tear and normal glenohumeral and acromioclavicular joints. Dr.

Wallace noted the vaccine injection may have penetrated her subacromial space, causing an inflammatory reaction. An MRI arthrogram on January 29, 2016, showed mild degenerative arthrosis of the acromioclavicular joint and a possible small superior labral tear from anterior to posterior (SLAP lesion).

On February 3, 2016, pain specialist Dr. Mark Hines noted left shoulder pain and a loss of internal rotation, recommending physical therapy and dry needling.

Follow-up with Dr. Martin on March 11, 2016, indicated mild to moderate pain that could wake her from sleep if she rolled onto the shoulder, but still with full range of motion and strength.

A left glenohumeral injection on March 17, 2016, resulted in immediate improvement. By April 2016, no left shoulder pain was noted during a physical.

Ms. Weber gave birth on April 4, 2017.

She returned to Dr. Martin on February 20, 2018, reporting that the 2016 injection had improved her symptoms, but they had slowly recurred.

She experienced overhead pain, better with anti-inflammatories, and her examination showed normal strength, full range of motion, and no tenderness. Dr.

Martin recommended physical therapy and ibuprofen, with follow-up only if symptoms did not improve. There was no evidence of further treatment after this visit.

In a July 2018 affidavit, Ms. Weber described her pre-injury activity level and how the SIRVA impacted her ability to exercise, swim, bowl, walk her dogs, and perform her duties as a nurse practitioner.

She also described significant anxiety due to fear of her shoulder deteriorating like her right shoulder, which had required surgery. She attributed her sparse treatment record to overlapping life stressors including her father's hospitalization, home construction, graduate school, IVF treatments, pregnancy, and the birth of her daughter.

She self-assessed her current capacity at sixty-five to seventy-five percent of normal. Petitioner sought $113,000.00 for pain and suffering, plus $1,027.83 for past unreimbursable medical expenses.

Respondent proposed $85,000.00 for pain and suffering, arguing the injury was relatively mild with limited treatment, normal strength and range of motion, successful injections, and an MRI showing only mild degenerative change and a possible small SLAP lesion. On April 9, 2019, Chief Special Master Dorsey issued a Decision Awarding Damages.

Applying a three-factor framework (awareness, severity, duration), she found Ms. Weber had full awareness but the injury was relatively mild and the recovery period not prolonged.

She found the Marino and Desrosiers decisions instructive, noting similarities in lifestyle disruption and life circumstances affecting treatment frequency. However, she distinguished Marino due to more significant pathology in that case's MRI and distinguished Desrosiers due to Ms.

Weber's less consistent treatment record (intermittent visits versus thirteen occasions). The Special Master declined to award future pain and suffering, finding Ms.

Weber's affidavit claims of ongoing pain inconsistent with her February 2018 medical records, which stated her pain did not wake her from sleep, and her failure to pursue recommended physical therapy. Chief Special Master Dorsey awarded a lump sum of $86,027.83, comprising $85,000.00 for past pain and suffering and $1,027.83 for past unreimbursable medical expenses.

No award was made for future pain and suffering, future medical expenses, or lost wages.